Pinellas County Florida Criminal Lawyer Blog

DOES DEFENDANT HAVE TO GIVE THE Department of Justice HER LAPTOP PASSWORD?

That is the question a federal court must answer when a Colorado woman goes on trial for bank fraud, wire fraud, and money laundering charges.

The woman, Ramona Fricosu, had her laptop seized after a federal investigation revealed that she and her husband allegedly tried to take title to foreclosed homes by fraud.

This case raises some fascinating issues about the Fifth Amendment, the Right to Privacy, and what actions by criminal defendants are considered "testimonial" and thus not subject to privacy. As you may or may not know to "plea the fifth" means to exercise your right against making statements that may incriminate yourself.
Apparently the woman's laptop has an encrypted code. The only way federal investigators can view the evidence is to have the woman enter this secret code on her laptop. But if she is forced to do this, is her right to privacy being violated? Is the passcode "testimonial"?
If she enters the password, she will incriminate herself.

Remember that under the Fifth Amendment, everyone has the right against self incrimination, but in today's modern world the records you keep could be considered a form of incrimination that requires Fifth Amendment protection. Don't second-guess yourself! When faced with a situation where you are being asked to turn over or reveal what could potentially be incriminating information, CALL US FIRST before you do anything that could jeopardize your freedom or liberty.

A Trinity, Florida man awaiting trial in a DUI manslaughter where his wife was the victim was rearrested on another DUI in Palm Harbor, Florida. 

Phillip Billitteri was arrested in September, 2010 for DUI manslaughter stemming from an April 2010 accident where he made a left turn into his own subdivision and was hit by an oncoming pick up truck.  His wife, in the passenger's seat, was killed. (See St. Peterburg Times article)

Last week in downtown Palm Harbor, he was again driving and hit two women who were crossing the street causing pretty severe injuries.  (See St. Petersburg Times)

This completely tragic story brings up several legal issues.  The first is that when the State Attorney's Office in Pasco County, learned of the new arrest in Pinellas, they asked the judge to revoke his $10,000 bond.  She did.  This means that even though he had bonded himself out on the Pasco DUI manslaughter charge, he now has no bond.  This is common, since a condition of anyone's bond is that they have no new arrests.  Interestingly, most judges when realeasing someone on a DUI, will tell the person that a condition of their bond is to drink no alcohol.  Not all judges say it, and of course it's impossible to monitor.  But at the time of Mr. Billitteri's arrest in Pasco County, he never saw a judge.  It looks like the warrant was issued for his arrest and he did what's called a "walk through" with a bailbondsman.  That means, he was booked into the jail and realeased immediately.  With only a $10,000 bond - on a DUI manslaughter.  Those of you who have ever been arrested on drug charges will realize how low of a bond this is.  That's the second issue - how low the bonds are on charges where if the person is released there's a real threat of harm to the community - like DUI or domestic battery.  We've all seen bonds double or triple this for felony drug charges.  Why? 

On the new Pinellas County charge his bond was only $5000.  Interestingly, no judge in that case advised him that he should drink no alcohol.  When the Pinellas case was transferred from traffic court to felony court, he was issued a SCRAM monitor.  That's the ankle monitor that allegedly goes off if the person consumes alcohol - even mouthwash. 

Pawuk & Pawuk handles alot of DUI cases - and this tradgedy, that someone released on such a low bond, and then go out and drink and drive while, injuring other people AGAIN -  is one of my greatest fears.  I'm sure this man feels horrible.  My heart goes out to him and his family.  However, I think at this point, the only safe place for this guy is jail. 

When one first hears about the crime of Dealing in Stolen Property, they might envision someone selling  car stereos out of the back of a truck.  Indeed that may be DSP, yet most of the cases we see involve a person taking an item to a pawnshop.  These cases are much easier to prove since they often follow a burglary.  So if items are missing from a home, police often check the nearest pawn shops for the items - more often than not, the items are there - and better yet for the police - whoever pawned the items left all their identifying information with the pawn broker.  Clearly a much easier crime to solve. 

Can you be convicted of both grand theft and dealing in stolen property? Like all things legal - it depends.  The law says that you can be charged with both, but not convicted of both - IF BOTH CRIMES ARISE OUT OF A SINGLE COURSE OF CONDUCT.  "A single course of conduct" is impossible to explain in this blog, and really depends on the facts of any given situation.

Interestingly, if you can be charged with both crimes - but not convicted - who gets to decide?  Since grand theft is usually a third degree felony (up to 5 yrs in prinson) and dealing in stolen property is usually a second degree felony (up to 15 years) should the "rule of lenity" apply?  That is, shouldn't you get the lesser sentence?  According to most courts in Florida, NO.

The Second District Court of Appeal, recently sent this question to the Supreme Court.  Since the legislature in the once again great wisdom never clarified that part, the Supreme Court now gets to decide.  In a case out of Tampa, Florida - Melvin Williams went to trial on both grand theft and dealing in stolen property (and a few other charges which aren't relevant to this).  He was convicted by the jury of both the grand theft and the DSP, and the judge dismissed the grand theft, but convicted him of the DSP.  He appealed his case, saying that the jury should have been instructed that they couldn't convict him on both as the statute says.  However, there's no standard jury instruction on this, and therefore no explaination to the jury of how to decide which crime to convict.  Arbitrary?  So the trial judge in this case, picked the greater crime and dismissed the lesser. 

The quickest fix to this arbitrary law seems to be to write a jury instruction to clarify things for the jury to choose.  Who gets to write these?  The Supreme Court.  There's a committee of lawyers that makes the reccomendations on jury instructions to the Supreme Court.  Since the legislature seems to be too concerned about baggy pants in school - I guess it's up to the lawyers to fix it.  Scary huh?

Pawuk & Pawuk is pleased to welcome Scott Finelli to our practice.  Scott will concentrate his practice in the areas of family law and domestic violence. 

Mr.  Finelli comes to us after a long career as a history teacher.  A 1995 graduate of University of South Florida, he began his teaching career in Pasco County, teaching at both the middle and high school levels.  He was also the Assistant Football Coach at Bayonet Middle School. 

Mr. Finelli attended Florida Coastal School of Law where he was on the Dean's List.  He also spent two years clerking with a family law judge in Jacksonville, Florida.  Mr. Finelli brings to the firm a wide variety of life and learning experience and we look forward to working with him.  If you have a question about any family law matter, call us today.

Although I've resisted blogging about this case until now - I feel I must explain something about it now,  mainly because everyone and their brother have asked me about it.

This morning, Casey Anthony was sentenced.  Prior to sentencing the State made an argument to the judge that the "investigative costs" part of sentencing should be "bifurcated" from the rest of the sentencing.  Although this sounds important it's really not.

Bifurcate is a fancy legal word for separate.  Many trials are bifurcated, for example, in a  felony DUI- the regular DUI will be tried first and if the defendant is found guilty - the felony portion of the DUI - that is, proving there are priors DUI convictions - will be tried second. 

Investigative costs - are the cost of any criminal investigation which are assessed as a fine in all criminal cases.  This is the cost of the time it took the police to investigate the crime usually calculated by the hour in addition to other costs.  In most misdemeanor cases the costs are around $100 - $200. 

But in Casey Anthony's case - because she led the police on a "wild goose chase" for months, I would imagine the costs are going to be ALOT higher.  As part of her sentence the judge will assess those costs of investigation and she'll have to pay them.  How? you're probably asking. She'll set up a payment plan with the Clerk of Court and she'll have to pay them, or they'll send it to collections and suspend her driver's license. 

By bifucating the sentencing, the judge is allowing the State more time to figure out the exact figure of investigative costs and to present that to the defense so that they can object or agree.  Clearly it's much easier for the attorney's to work out something rather than have a long hearing on the costs. 

So for everyone who's called me today asking me to explain what happened - and those of you who don't even know me but were thinking of calling - this is the short and simple answer. 

Don't ask me anything else about the case - I didn't have time to watch it and I'd rather stick pins in my eyes than listen to Nancy Grace's version of any issue. 

There have been several fatal or almost fatal accidents in Pinellas, Pasco, and Hernando counties involving police chases lately.  Interestingly, many of these counties have a no chase policy with some exceptions. 

For example, yesterday in St. Petersburg, on a routine stop for a drug violation, the driver rammed into a police cruiser.  Because the ramming was an aggravated battery of a law enforcment officer, the police were allowed to chase.  St. Petersburg otherwise has a no chase policy unless in pursuit of someone who has committed a violent crime.  (See St. Petersburg Times 7/7/11) 

Over the weekend a Hernando deputy was killed when he lost control of his car while he was in high pursuit of a suspected DUI driver. (Hernando chase)   Hernando County allows it's deputies to chase even misdemeanors apparently.  Hopefully that policy will change.

Last month in Pasco County a woman who escaped her handcuffs and someone got out of the back of a cop car and back into her truck (where the keys to the truck were still in the truck) fled the scene and killed a motorcyclist in Hernando County.  The Pasco Sheriff's Office has yet to release the internal report on how this happened.  (St. Pete Times 5/16/11)

Because fleeing and eluding law enforcment officers is so dangerous - the law surrounding it is complicated.  Years ago, the cop car had to be marked with lights and siren going for someone to be charged with fleeing and eluding.  Not neccessarily anymore.  In fact part of the law now states that if you flee from a traffic accident (otherwise known as leaving the scene) and damage proprtey or people, you can be charged with fleeing and eluding. 

If you've been charged with fleeing and eluding - CALL US.  There are sometimes minimum mandatory sentences and the loss of your driver's license that are part of the punishment - talk to an attorney before you plea!!!

The recent public break-up of Arnold Schwarzeneggar and Maria Shriver raised some interesting questions about what spouses are entitled to at the time of divorce. Media sources stated that under California law, because the celebrity couple had been married since 1986, Ms. Shriver would be entitled to half of the marital estate under California's "equitable distribution" principles.  Those same sources speculated that the former Terminator star's net worth to hover around $100 million.

Similar to the marital laws in California, Florida also has an equitable distribution scheme which provides that spouses are entitled to divvy up what they earned while married. Now, it's easy to confuse equitable with "equal," but that is not necessarily the case--"equitable" more closely means  "what is most fair". Often a husband or a wife who was primarily a homemaker during the marital relationship will feel as though they are not entitled to anything. WRONG!!! Courts view any kind of labor, even labor that primarily focused on maintaining the household, like childcare, doing the dishes, or paying the bills, as equal in value as going out and earning a living. Florida law also provides for spousal support and alimony.

If you are facing the possibility of divorce, it is important to educate yourself. If you are served with a divorce petition by your spouse, be aware that you have to file a response within a certain time frame. What often happens is the spouse who files the divorce tries to convince the other that they don't need a lawyer or that they just need to sign a piece of paper and the lawyer will take care of it. This is horrible advice. You likely are signing away your rights to significant amounts of money. Understand that the lawyer your soon-to-be former spouse is not looking out for your best interest, but your ex's. Don't let this happen! We would be more than happy to help guide you through the maze of divorce law and help you protect what is rightfully yours.